A place to find news updates, legal analysis, and all official documents related to the various constitutional challenges to the Patient Protection and Affordable Care Act (as amended by the Health Care and Education Reconciliation Act of 2010)

Wednesday, June 29, 2011

The Sixth Circuit has just issued its opinion, rejecting the plaintiffs' challenge to the minimum coverage provision. The court split three ways, with no majority to completely uphold the mandate under the Commerce Clause. Judge Sutton concurred/delivered the opinion for the court on the point that the plaintiffs facial challenge must be rejected. More analysis to come shortly.

UPDATE: Judge Sutton's reasoning is narrower than Judge Martin's, but they both vote to hold that the minimum coverage provision, on its face, is within Congress's authority to regulate interstate commerce. Here are some crucial passages from Judge Sutton's opinion (which I assume will be effectively controlling--to the extent that matters--since it is the narrower of the two):

The individual mandate also steers clear of the central defect in the laws at issue in Lopez and Morrison. Health care and the means of paying for it are “quintessentially economic” in a way that possessing guns near schools, see Lopez, 514 U.S. 549, and domestic violence, see Morrison, 529 U.S. 598, are not. No one must “pile inference upon inference,” Lopez, 514 U.S. at 567, to recognize that the national regulation of a $2.5 trillion industry, much of which is financed through “health insurance . . . sold by national or regional health insurance companies,” 42 U.S.C. § 18091(a)(2)(B), is economic in nature. Nor does this approach remove all limits on the commerce power. As Lopez and Morrison suggest, a majority of the Court still appears to accept the line between regulating economic and non-economic conduct, which is why a general murder or assault statute would exceed congressional power. Measured by these conventional commerce clause benchmarks, the minimum-essential-coverage provision passes. . . .

Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No—for several reasons. First, the relevant text of the Constitution does not contain such a limitation. To the extent “regulate,” “commerce,” “necessary” and “proper” might be words of confinement, the Court has not treated them that way, as long as the objects of federal legislation are economic and substantially affect commerce. . . . Second, the promise offered by the action/inaction dichotomy—of establishing a principled and categorical limit on the commerce power—seems unlikely to deliver in practice. . . . [Third, a]n enforceable line is even more difficult to discern when it comes to health insurance and the point of buying it: financial risk. Risk is not having money when you need it. And the mandate is one way of ensuring that all Americans have money to pay for health care when they inevitably need it. In this context, the notion that self-insuring amounts to inaction and buying insurance amounts to action is not self-evident.